Plaintiffs' Response in Opposition to Defendant Memorial Hospital's Motion for Judgment Notwithstanding the Verdict on Plaintiffs' Survival ACT Claim or, in the Alternative, for New Trial or, in the Second Alternative, for Remittitur and for an Order Vacating the Rule 137 Sanctions Imposed”

Come now Plaintiffs, by their attorneys, Judy L. Cates and Candice C. Kusmer, and for Plaintiffs' Response In Opposition To “Defendant Memorial Hospital's Motion For Judgment Notwithstanding The Verdict On Plaintiffs' Survival Act Claim Or, In The Alternative, For New Trial Or, In The Second Alternative, For Remittitur And For An Order Vacating The Rule 137 Sanctions Imposed,” state as follows:

The defendant hospital alleges that the verdict and damages awarded against Memorial were the result of “passion and prejudice” on the part of the jury. Although the plaintiffs concede that the facts of this particular case demonstrated gross misconduct by the hospital, the defendant unfortunately, has no one to blame but itself. As demonstrated below, over the course of almost two weeks of testimony and evidence during this trial, the jury was provided with more than enough relevant, admissible evidence with which to find that Joyce Cretton suffered a brain injury when she was transferred by the hospital's nursing staff. The jury was clearly justified in finding against the defendant hospital on plaintiffs' Survival Count.

A trial such as this does not warrant a judgment notwithstanding the verdict, regardless of the complications which arose as a result of the defendant's own misconduct and the misconduct of its attorneys. In deciding whether to direct a verdict or to enter a judgment n.o.v., it is incumbent upon the trial court to apply the standard enunciated by our Supreme court in Pedrick v. Peoria Eastern R.R. Co., Brooke Inns, Inc. v. S & R Hi-Fi And TV, 249 I11.App.3d 1064, 1074, 618 N.E.2d 734, 741, 188 I11.Dec. 164, 171 (1st Dist. 1993). The Pedrick court originated the strict standard which states that “verdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence should ever stand.” (Emphasis added.) Pedrick v. Peoria Eastern R.R. Co.,37 I11.2d 494,510, 229 N.E.2d 504, 513-514 (111. 1967).

“Where there is a conflict in the testimony, a reviewing court may not substitute its judgment for that of the jury in passing on the weight of the evidence and on the credibility of the witnesses.” (Citation omitted.) Brook Inns, 618 N.E.2d at 744. Further, verdicts are not considered against the manifest weight of the evidence “unless a conclusion opposite to that reached by the jury is clearly evident or the jury's verdict is palpably erroneous.” Didier v. Jones, 61 Ill.App.3d 22, 27, 377 N.E.2d 572, 575, 18 Ill.Dec. 283, 286 (2nd Dist. 1978). “Manifest weight' as applied in determining whether a verdict or judgment is against the manifest weight of the evidence is that weight which is clearly evident, plain and indisputable.” Id.

A. The jury's assessment of damages for plaintiffs' Survival Count was reasonable in light of the evidence presented at trial.

The Illinois Supreme Court gives strong deference to juries in making the factual determination of damages, especially in personal injury cases such as this. In fact, a judge may only tamper with jury's award for damages in very limited cases:

Illinois courts have repeatedly held that the amount of damages to be assessed is peculiarly a question of fact for the jury to determine and that great weight must be given to the jury's decision. The very nature of personal Injury cases makes it impossible to establish a precise formula to determine whether a particular award is excessive or not. Additionally, judges are not ree to reweigh the evidence simply because they may have arrived at a different verdict than the jury. Indeed, a court reviewing a jury's assessment of damages should not interfere unless a proven element of damages was ignored, the verdict resulted from passion or prejudice, or the award bears no reasonable relationshi to the loss suffered.

(Emphasis added; citations omitted.) Snelson v. Kamm, 204 I11.2d 1, 36-37, 787 N.E.2d 796, 816 III.Dec. 610, 630 (I11. 2003). Further, where, as in this case, “the jury has been correctly instructed upon the measure of damage, and it is not claimed nor shown that the size of the verdict clearly indicates it was the result of prejudice or passion on the part of the jury, [the verdict] should not be disturbed upon review.” (Emphasis added.) Ford v. Friel, 330 I11.App. 136, 140, 70, N.E.2d 626, 627 (1st Dist. 1947).

In reviewing a question as to the adequacy of damages, the court must take into consideration the record as a whole.Snelson, 204 I11.2d at 37. In this case, the jury was presented with evidence and testimony regarding the existence of Joyce Cretton's fall on the night of February 24, 1999, and subsequent pain and suffering therefrom. Specifically, plaintiffs offered the testimony of defendant's nursing employee, Joyce Tomlinson. On cross-examination as an adverse witness, Tomlinson testified to the following scenario of the transfer:

Q. Okay. At any rate, you called Cheryl Cretton], but what was Important is what you did after the transfer. After the transfer you did speak with Cheryl?

A. Yes, I did.

Q. And you told her that you sat her mom down a little harder on the bottom than you would have liked?

A. That is correct.

Plaintiffs' nursing expert, Karen Krooswyk, next testified regarding the deviation from the standard of care in Joyce Cretton's bed-to-bed transfer. On questioning with regard to Joyce Cretton's ability to assist in her own transfer, Krooswyk stated the following:

A. It's Impossible, because a patient like Mrs. Cretton' from what I'm taking from the nursing notes, took three people to lift the day before, and physically if someone can't stand dead weight and there's no way a person can hold onto this person adequately. The person is very, very limp. It's just Impossible to hold on very very good like one person. So I'm thinking this is a 180 degree pivot in the bed, but when I see the picture there my concern was the way the bed was positioned that she did not have enough room to get her properly into that bed.

(Tr.737)

Krooswyk further testified to a reasonable degree of nursing certainty that Joyce Tomlinson, employee of Memorial Hospital, deviated from accepted standards of nursing care when she attempted to transfer Joyce Cretton on February 24, 1999. (Tr. 739.) Taking into consideration Joyce Tomlinson's own testimony concerning the “rough” transfer (see Tr. 600) and Philip Schorfheide's notation that her legs “buckled” (see Trial Exhibit 12), Krooswyk testified that the facts were “consistent with the allegation of a fall.” (Tr. 743-744.)

Moreover, on cross-examination by Mr. Bott, nurse expert Krooswyk testified to the signs and symptoms of a subdural hematoma injury in the following exchange:

Q. Specifically, what you think to be a sign and symptom of the subdural hematoma what entry?

Q. So, “Patient more anxions than (sic) respiratory proble.” And the anxiety is something that you would typically find with someone who's suffering from a subdural hematoma?

A. It could be one of, sign, a very subtle sign. We know that Mrs. Cretton has been anxious in the past but

Q. I mean, she's been anxious to the hospital?

A. Right, but when Nurse Sedam charted that she was passing air very well in her lungs I looked at that as a very sign.

Q. And how is that a subtle sign?

A. It's just one of the things that people can exhibit, that sometimes they have an impending fear that something is going to happen to them and they get a little anxious.

(See Tr. 775, citing Trial Exhibit 1, p. 425.)

Certainly the testimony of Dr. Harry Parks, the coroner, medical examiner and pathologist who conducted the autopsy on Joyce Cretton's body, was devastating to Memorial and contributed to plaintiffs' evidence of pain and suffering following a fall or drop at Memorial Hospital on the night of February 24,1999. Although Dr. Parks died prior to the Cretton trial, his deposition testimony was read into evidence. His testimony confirmed the evidence of a fall or drop:

Q. Okay. Doctor, with this individual and the autopsy that you performed on March 1 of 1999, did you after performing the autopsy and reviewing the microscopic samples, did you come to an opinion to a reasonable degree of medical certainty in your field that the immediate cause of death for Joyce Cretton was closed head injury with acute occipital subdural hematoma?

A. That's correct.

Q. And did you also come to an opinion to a reasonable degree of medical certainty that this closed head injury with acute occipital subdural hematoma was due to or as a consequence of a right frontal contusion consistent with a contrecoup injury?

A. No, it was the other way around. I found a right frontal contusion consistent with a contrecoup Injury from a blow to the back of the head. The primary injury was the left occiptal part of the brain

Q. So it was your opinion based upon everything that you reviewed and the actual autopsy and you examinations of this individual, Joyce Cretton, had sustained a blow to the left occipital or rear area of her head?

A. That's correct

(Tr. 858.)

Further, Dr. Parks also testified to the appearance of Joyce Cretton's brain upon autopsy:

Q. Doctor, when you were performing your autopsy, did you find any Indications of swelling or edema of the brain

A. The brain showed some swelling of the gyri which are the folds of the brain and the obliteration of the sulci which are the spaces between the gyri. That was the gross evidence of swelling or edema of the brain.

Q. All right. And did you notice swelling of the cerebellum in the formation of a cone?

A. The cerebellum did show a cone deformity where it entered the superior opening of the spinal canal at the base of the brain.

Q. Okay. Just to make sure I have this right, Doctor. Are you saying that the -you had seen that the brain had swollen to such a point that the brain or brain matter was penetrating into the area where the spinal canal and the base of the skull meet?

A. The cerebellum and the part of the spinal cord just below it, that which is called the medulla oblongata is shoved down Into the spinal canal, it gets squeezed and damaged, and the usual mechanism of death is respiratory arrest.

(Tr. 860-861.)

Dr. Douglas Dothager, Joyce Cretton's treating pulmonologist in the hours before her death, testified that based on what he knew as a physician and Joyce Cretton's medical history, he “would not expect that kind of woman to be in end stage chronic obstructive pulmonary disease.” (Tr. 1089.) Dr. Dothager also acknowledged that head injury can be a cause of respiratory failure. (Tr. 1109.) Joyce Cretton's appearance and demeanor in the hours before her death were also telling of pain and suffering:

Q. Did you see [fright] on Mrs. Cretton's face?

A. Yes

Q. You knew, you knew that she was aware what was going on, didn't you?

A. I got a very uncomfortable feeling when I walked in the room, yes.

Q. And you did that partially by looking at her?

A. Correct.

Q. She was frightened?

A. True.

Q. Do you believe she was frightened for her own life end whether she would make it at the time you saw her at 9:00?

A. Trus.

(Emphasis added; Tr. 1115.)

Even defendant's own expert neurologist, Dr. Mary Case, testified that Joyce Cretton suffered a “significant jarring” which created the subdural hemorrhage found in her brain:

Q. Okay, so Dr. Case agrees with this. Now, you agree, Dr. Case, that the only way a patient In a hospital could have a subdural hemorrhage is either a blow on the head or some - think you put significant jarring of the head, is that true?

A. It could be Jarring of the body, that something caused the head to move.

Q. Okay, jarring of the body?

A. Yes, and I stand by that

Q. So the only way this could happen is to fall, have a blow to the head. Which do you prefer, a blow to the head, fall

A. A fall is one mechanism.

(Tr. 1361-1362.)

In spite of the compelling testimony from the witnesses, defendant hospital makes much out of the fact that plaintiffs' counsel mentioned in her closing argument the respiratory distress suffered by Joyce Cretton just prior to her death. Memorial Hospital suggests that the respiratory distress was the “only” evidence of pain and suffering offered at trial.

Counsel is afforded wide latitude in making a dosing argument. Elligt v. Bilsel, 255 III. App.3d 233, 238, 626 N.E.2d 386, 389,193 III 353, 356 (5th Dist. 1993). In this instance, plaintif's counsel was only allowed to highlight the massive amount of evidence and testimony presented duing the course of the trial. The evidence before the jury which was developed over the course of a two week trial was much more developed than a time-limited closing argument. For the defendant hospital to pick and choose which testimony favored the hospital and request a judgment notwithstanding the verdict based on their own selections of testimony is inappropriate. Likewise, it would be inappropriate for this Court to interfere with the jury's damages award based on a reweighing of the evidence presented by defendant.

B. Remittitur Or The Ordering Of A New Trial Is Inappropriate On The Survival Act Damages

Alternatively, defendant hospital argues that the jury's verdict of $950,000.00 on plaintiffs' Survival Count was not rationally related to the evidence presented. Defendant hospital requests this Court to enter remittitur or grant the hospital a new trial based on its assertion.

However, the amount of a verdict is generally left to the discretion of the jury. Velarde v. Illinois Cent. R.R. Co., 354 Ill.App.3d 523, 540, 820 N.E.2d 37, 54, 289 III.Dec. 529, 546 (1st Dist. 2004). “A damage award is not subject to scientific computation.” Id. Therefore, a court must not “lightly substitute its opinion for the judgment rendered in the trial court.” Richardson v. Chapman, 175 III 98, 113, 676 N.E.2d 621, 628, 221 III.Dec. 818, 825 (Ill.1997). “An award of damages will be deemed excessive if it falls outside the range of fair and reasonable compensation or results from passion or prejudice, or if it is so large that it shocks the judicial conscience.” Id.

Here, much like in Richardson, it was the jury's function to consider the credibility of the witnesses and to determine an appropriate amount of damages. This was a case with conflicting evidence and testimony - a case with evidence produced during the trial which contradicted the medical records themselves. This was the kind of case upon which a jury should have made a determination as the trier of fact. The mere fact that plaintiffs' counsel only suggested a $500,000.00 damage award to the jury for the Survival Count is of no matter. (Tr. 1465.) In fact, plaintiffs' counsel suggested to the jury in her closing argument that they award $500,000.00 on the Survival Count - but “didn't have to put in that amount.” They could put in more - or they could put in less. Id.

Following their deliberations, the jury observed almost two weeks of testimony which included: 1) evidence of a head injury to a hospital patient during patient transfer, 2) a hospital cover-up, 3) an incomplete if not tainted medical record, 4) and the physical and emotional suffering of the decedent following the injury. Accordingly, the jury awarded an amount of damages of no more than one million dollars. This is not evidence of a runaway jury award. This case was not even a multimillion dollar verdict. The jury was free to award as it saw appropriate on the Survival Count in light of the evidence presented at trial.

Additionally, the defendant Hospital makes little mention of the fact that the jury found in the hospital's favor on the Wrongful Death Count of plaintiffs' Amended Complaint. Actually, counsel for plaintiffs also suggested that the jury award the Cretton family 1.5 million dollars on the Wrongful Death Count (Tr. 1466) which the jury refused to do. Had the jury been so influenced by “passion and prejudice,” as alleged by defendant hospital, it clearly would not have ruled in favor of defendant on the Wrongful Death count. The fact that this jury was able to distinguish between the claims made and reject the Wrongful Death claim is clear and convincing evidence that the jury made rational, informed decisions based on the evidence.

As stated previously, this was not a “slam-dunk” case for the plaintiffs. Because the medical records were devoid of any reference to a fall or drop, plaintiffs faced a big challenge. After all, Joyce Cretton suffered from COPD, a severe respiratory illness which also compromised her ability to breathe. In fact, the reality of decedent's COPD lingered through trial to closing arguments. (See Plaintiffs' Closing Argument, Tr. 1467.) This jury signed a verdict in favor of plaintiffs on the Survival Count and in favor of the defendant hospital on the Wrongful Death count. Again, their decision to split the counts is evidence that the jury weighed the testimony of each party and made its determination based on the evidence presented.

The fact that some of the respiratory symptoms from which Joyce Cretton suffered caused her death (at least in the eyes of this jury) does not undermine a damages award under the Survival Count. The evidence presented at trial demonstrated that Joyce Cretton was dropped during a bed transfer on the night of February 24,1999. She lived -following that injury. Her COPD did not diminish the brain injury she suffered.

III. Plaintiffs' Counsel Did Not “Lawyer-Bash” Defense Counsel In The Presence Of The Jury

Counsel for defendant next allege that they suffered from “lawyer-bashing” by plaintiffs' counsel akin to that which occurred in the Illinois Supreme Court case, Holton v. Memorial Hospital, 176 Ill.2d 95, 679 N.E.2d 1202, 223 Ill.Dec. 429 (Ill. 1997). It should be noted that in Holton, the plaintiff's attorney stated in his closing argument that “the rules of the trial had been ‘shamelessly ignored’ by the defense, including the rule that attorneys should not ‘counsel or assist a witness to testify falsely.”’ Id. at 128. Plaintiff's counsel also suggested that some witnesses were “nice people” who “had been encouraged to ‘modify their testimony.”’ Id. According to plaintiff's counsel:

...[H]is was the profession of Abraham Lincoln and Daniel Webster and the Declaration of Independence while the defense attorneys' profession was that of ‘John Dean, John Erlichmann, people who were so interested in winning that they violated the rules.’ [Plaintiff's counsel] told the jury that the probable reason for the ‘lawyer misconduct in this case’ was that Mrs. Holton sustained terrible damages. He further informed the jury that it had been the victim of ‘distortion of the truth’ by named partner in a large St. Louis law firm.

Id. The comments cited in Holton were nothing like the words used by plaintiffs' counsel in this trial. In fact, plaintiffs' counsel was very careful to plead her case honestly with

Moreover, unlike Holton, in this case the trial had been fraught with the misconduct of the defense counsel. To the extent the Court cautioned the parties during a pre-trial conference on making “bold claims of fraud [and] misrepresentation” (July 24, 2003, Tr. 7-8), the Court did so in good faith reliance upon the fact that all parties had complied with the rules of discovery. At the time this statement was made, neither the Court nor plaintiffs' counsel had any idea of what was contained and falsely deemed protected by the Medical Studies Act in the decedent's medical record. Just prior to trial and continuing throughout, it became more and more clear that the defense for the hospital was aware of the damaging notes buried under the protection of a “Privilege Log” which the defens' counsel had known about for years. To the extent plaintiffs' counsel commented on defense counsel's conduct (Tr. 131, 259-261, 760, 798, 1457-58 and 1499), such comments were not without cause. By the time the jury heard the closing argument of plaintiffs' counsel, the jury was well aware of the hospital's misconduct and the misconduct of its attorneys.

In that regard, the very same case which defendant hospital cites for the proposition that plaintiffs' counsel was “lawyer-bashing” also states that in trials where, as here, counsel's misconduct was apparent, opposing counsel is permitted to comment:

It is true that where there is record of evidence in support of a claim that opposing counsel or parties falsified evidence or encouraged witnesses to change their trial testimony, counsel may fairly comment upon such evidence. If a witness' trial testimony significantly differs from his or her deposition testimony, opposing counsel may exploit such changes by traditional means of impeachment.

(Emphasis added) Id. Taking into consideration all that was discovered during the course of this trial, surely a “record of evidence” existed that counsel for defendant hospital improperly withheld evidence under the guise of the Medical Studies Act and had previously failed to correct the deceitful testimony of Philip Schorfheide in his deposition prior to trial. Unfortunately, it was defense counsel who put counsel for plaintiffs in the position to be able to comment on this kind of conduct.

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